Rau v. Redwood City Woman's Club, 15127

• Decision Date: 09 June 1952
• Docket Number: No. 15127,15127
• Citation: 111 Cal.App.2d 546,245 P.2d 12
• Court: California Court of Appeals Court of Appeals
• Parties: RAU v. REDWOOD CITY WOMAN'S CLUB.

Page 12

245 P.2d 12

111 Cal.App.2d 546

RAU v. REDWOOD CITY WOMAN'S CLUB.

No. 15127.

District Court of Appeal, First District, Division 1, California.

June 9, 1952.

F. E. Hoffman, San Mateo, Ropers & Majeski, Redwood City, for appellant.

Albert E. Deasy, J. Emmet Chapman, San Francisco, for respondent.

BRAY, Justice.

The jury awarded plaintiff $11,000 for personal injuries. A new trial was denied upon condition that plaintiff consent to a reduction of the amount to $9,000. Plaintiff consented. Defendant appeals from the judgment.

Questions Presented.

1. Primarily, the rule of liability to the public of a lessor of a semi-public place. This includes alleged error in giving and refusing instructions.

2. Was plaintiff guilty of contributory negligence as a matter of law?

3. Alleged erroneous rulings, particularly the admission of a portion of a city ordinance.

4. The effect of the judge permitting the jury to view the premises in his absence.

Facts.

Mrs. Jaski, a piano teacher, rented an auditorium from defendant for the purpose of having her pupils give a recital. She invited plaintiff, a violin teacher, to participate. The day before the recital plaintiff and others came to the auditorium to rehearse. There was only one stairway to the stage. It consisted of five or six steps. As plaintiff started up the stairs her foot slipped forward. She noticed that the stairs, apparently of hardwood, appeared worn and shiny, almost as though they had been waxed. She had no further difficulty going up. After the rehearsal, descending the stairs she noticed that each step was slippery and there was not any bannister to hold onto, so she stayed near the wall, touching it with her finger tips. Going up the stairs the next evening she noticed that the steps were very slippery. After the recital, she was preceded down the stairs by one person and followed by another. Plaintiff did not mention the slippery condition to anyone. She was carrying her violin, her music, the violin bow, and had gathered up her formal dress, all in her right hand. As she started down the stairs she was looking where she was going, but slipped, falling on her buttocks, sliding to the foot of the stairs, and was injured. A witness stated that plaintiff was at the top of the stairs and suddenly her foot 'went right out from under her and down she went.' Three witnesses other than plaintiff testified that the stairs were 'worn' and two others than plaintiff that they were 'slippery.' There was evidence that they were neither worn nor slippery. The building was constructed about 1911 or 1912 and the stairs were in substantially the same condition as when built. The stairs were 33 1/2 inches wide. On one side they were against the wall and without railings. The risers were about 6 1/4 inches and the treads about 9 3/4 inches. There was testimony that others had fallen on these stairs and testimony that no one had ever slipped before.

1. Duty of Lessor.

Defendant's theory of the case was that a lessor is not liable to the general public or an invitee of the tenant for obvious defects, and if the defects or dangers are such as would be apparent to a person on a reasonable inspection, such person if injured cannot recover. Defendant offered instructions to that effect, which the court refused. The authorities cited by defendant in support of this contention do not do so. They are Powell v. Stivers, 108 Cal.App.2d 72, 238 P.2d 34; Kearns v. Smith, 55 Cal.App.2d 532, 131 P.2d 36; Zavalney v. Donovan, 70 Cal.App.2d 182, 160 P.2d 558. The cases all deal with the rule of liability between landlord and tenant.

The court instructed the jury that the lessor of a building to be used for public or semi-public purposes is liable to a third person for injuries due to a dangerous condition known, or which should have been known, to the lessor; that the latter is bound to use reasonable care to see that such building is properly constructed and is maintained in a fit condition for the purpose for which it is used, and that the lessor must keep stairways and general premises, which the invitee is expressly or impliedly invited to use, in reasonably safe condition. This brings us to the question of what the defendant's duty towards plaintiff was. In King v. New Masonic Temple Ass'n, 51 Cal.App.2d 512, at page 515, 125 P.2d 559, 560, the court stated the rule: 'Where property is leased for a public or semi-public purpose and at the time is not safe for the purpose for which it is leased or there is a dangerous condition on the premises known to the lessor or which by the exercise of reasonable diligence he should have known existed, the lessor is liable to a third person for damages resulting from the condition of the leased property.' There the defect or danger was a difference in the height of a certain step from the other steps in such a position that that difference was not readily noticeable. The rule is stated a little differently in Hayes v. Richfield Oil Corp., 38 Cal.2d 375, 240 P.2d 580, 583: 'A lessor who leases property for a purpose involving the admission of the public is under a duty to see that it is safe for the purposes intended and to exercise reasonable care to inspect and repair the property before possession is transferred so as to prevent any unreasonable risk of harm to the public who may enter.' In that case the plaintiff, at night, fell into an open grease pit. The same rule was applied in Burroughs v. Ben's Auto Park, Inc., 27 Cal.2d 449, 164 P.2d 897, where plaintiff at night fell into an areaway adjacent to a parking lot where he had left his automobile. See also Travis v. Metropolitan Theatres Corp., 91 Cal.App.2d 664, 205 P.2d 475, and Moise v. Fairfax Markets, Inc., 106 Cal.App.2d 798, 236 P.2d 216.

Thus, the trial court was right in rejecting defendant's instructions as to the rule to be applied and in giving the instructions it gave.

2. Contributory Negligence.

In a more or less offhanded manner defendant apparently contends that plaintiff was guilty of contributory negligence as a matter of law because plaintiff testified that she knew the stairs were slippery and had no bannister, and that the lack of bannister was obvious. While the subject is not discussed to any degree it is necessary for us to determine the question. A case in which the facts on this point were quite similar to those in our case is Neel v. Mannings, Inc., 19 Cal.2d 647, 122 P.2d 576. There plaintiff was injured on a stairway by striking her head against a protruding ceiling board. (There the relationship between the parties differed from that in our case as the defendant was the owner of the restaurant and plaintiff was his invitee.) As to the contention of obvious danger and contributory negligence the court stated, 19 Cal.2d at pages 655, 656, 122 P.2d at page 580: 'The next question to be considered is whether plaintiff was as a matter of law guilty of contributory negligence. In this regard defendant relies on the rule that where one knows a condition to be dangerous and is injured because of failure to take heed thereof, such conduct will bar a recovery. But even though the evidence did establish that the alleged defect in the construction of defendant's premises was patent and observable to any one using the stairway, and that in addition plaintiff by reason of her past visits to the restaurant was familiar with the existing condition there would still be the question for the determination of the jury as to whether or not it was a want of ordinary care on the part of plaintiff not to have kept in mind such element of danger when stepping toward the wall rail to allow other persons descending the stairs to pass. [Citations.] * * * Whether plaintiff's action was reasonable and prudent under the circumstances was for the jury to decide as an issue of fact. [Citation.] As was said in McStay v. Citizens Nat. T. & S. Bank, supra, 5 Cal.App.2d at page 600, 43 P.2d at page 562: 'Where different conclusions may be reasonably drawn by different minds from the same evidence, the decision must be left to the jury.'' In Hayes v. Richfield Oil Corp., supra, 38 Cal.2d 385, 240 P.2d 580, 585, the court discussed a similar contention: 'Finally, Richfield contends that plaintiffs were guilty of contributory negligence as a matter of law. It is argued that Mr. Hayes, who knew of the location of the pit, was negligent in failing to warn his wife of its existence and that his negligence must be imputed to her. As to Mrs. Hayes, it is argued that she was negligent in proceeding over unfamiliar ground in the darkness instead of returning to the car over the better lighted route by which they had left the premises. The question of contributory negligence, however, was one of fact for the jury, and we cannot say that either plaintiff was negligent as a matter of law.'

It is true that in our case plaintiff testified that she knew the slippery condition of the stairs at the time she started down them and that she went carefully, touching the side wall with the tips of the fingers of her free hand because of that fact. This was an auditorium to which the lessor knew the public was invited. We cannot say, as a matter of law, that a reasonable person knowing the slippery condition of the stairs in this public building would not have done as plaintiff claims she did, carefully endeavor to use the slippery stairs, nor that a reasonable person on discovering the condition would have refused to attend the recital or called the situation to the attention of the club people. Whether it was reasonable for her to use the only stairs to the stage under the circumstances and whether she was reasonably careful, were for the jury to determine. 'We cannot say * * * that as a matter of law merely because plaintiff recognized a slippery condition of the floor which she felt to be dangerous and proceeded nevertheless to use the floor exercising the care and caution to which she...